Too afraid to ask: Rod Rosenstein

    In fair D.C., where we lay our scene

    Job security has been scarce in Washington, D.C. of late, with the careers of White House employees measured more often than not in “Mooches” — a ten-day unit of time named for the ill-fated and short-tenured Anthony “The Mooch” Scaramucci — rather than months or years.

    But while we’ve bid farewell to beloved D.C. fixtures such as Reince Priebus, Rex Tillerson and Paul Ryan’s conscience in recent months, not everyone has been fired (yet). Rod Rosenstein, despite frequent rumors regarding his employment status, remains both the United States deputy attorney general and the acting attorney general in the Russia investigation (or, to borrow a fancier-than-necessary word from NPR, the Russia imbroglio).

    A long time ago, in a news cycle far, far away

    While the president may well be regretting this decision after the events of the last year and a half-ish, Rod Rosenstein is a Trump appointee. He was appointed to his post in February 2017 and confirmed 94-6 by the Senate in late April that same year. From there, it took less than a month until he was thrust into the spotlight of D.C. politics by former FBI Director James Comey’s firing.

    In early May 2017, Rosenstein wrote a key memo detailing Comey’s missteps and failings as director, and recommending his removal. Comey was quickly and unceremoniously dismissed, and reportedly assumed at first that his firing was a prank after learning of it on TV.

    Within the same month, and still less than a month removed from his confirmation, Rosenstein also appointed Robert S. Mueller III as special counsel to investigate any and all links between the Russian government and the Trump campaign.

    Rosenstein was empowered to appoint a special counsel — normally the responsibility of the attorney general — due to Attorney General (and Keebler Elf) Jeff Sessions’ decision to recuse himself from all Russia-related matters in March 2017, which rendered Rosenstein acting attorney general in all such matters.

    Impeach me once, shame on you. Impeach me twice, you can’t get impeached again

    Flash forward to the present year and Rosenstein’s name continues to be in the headlines. The past controversy over his role in Comey’s firing has been replaced by chronic rumors about Rosenstein’s own job security as he continues to be the only person standing between Trump and Saturday Night Massacre II: Electric Boogaloo.

    Beyond the looming threat of a Nixon redux, House Republicans (read: would-be Speaker of the House Jim Jordan and company) have not once, but twice threatened Rosenstein’s impeachment, and on Sept. 24, The New York Times even went so far as to report that he was expected to leave the Justice Department, and that he verbally offered his resignation to Chief of Staff John Kelly. That Times report launched a head-spinning day of news, which Rosenstein ultimately survived with his job intact.

    The Kavanaugh hearings (an entirely different, yet-to-be-written TATA and still-unfolding shitshow) provided a temporary stay of execution for Rosenstein after a planned meeting with Trump set for Sept. 27 was delayed by Dr. Christine Blasey Ford’s testimony the same day.

    Nonetheless, Rosenstein’s job as deputy attorney general continues to hang on by a thread, and that’s significant.

    Schrödinger’s Deputy Attorney General

    As we mentioned earlier, there’s one basic reason that Rod Rosenstein is so important in the continuing nightmare that is our national politics. Thanks to Sessions’ recusal, Rosenstein is acting attorney general for all Russia-related matters. He appointed Mueller as special counsel, and he holds the power to fire him. If Rosenstein himself is fired or resigns, though, that changes.

    In that scenario, there are a few possibilities. First, there’s some confusion about what would happen to Rosenstein’s job. If he resigns, it’s pretty clear-cut: his position can be filled — temporarily — using the the Federal Vacancies Reform Act of 1998. The act doesn’t explicitly provide for replacing a fired executive agency officer, though, and if the Trump administration tries to stretch the law and do so, a legal showdown might result.

    It’s also possible, however, that the Vacancies Act is wholly a moot point. Anyone installed using the act would hold the title of acting deputy attorney general, but there’s little clarity as to whether they could serve simultaneously as acting attorney general.

    The most likely case, then, is that authority over the Mueller probe and the title acting attorney general for all Russia-related matters would devolve to Solicitor General Noel Francisco, who would then have authority over the investigation and its fate.

    In any case, what would happen in the case of Rosenstein leaving the Department of Justice remains speculation for now. He still has his job, despite his looming meetings with both President Trump and House Republicans, and the special counsel’s investigation. If that changes, though, whatever happens next will very likely merit a TATA of its own.


    • Deputy Attorney General Rod Rosenstein, by virtue of Attorney General Jeff Sessions’ recusal, is also acting attorney general in all Russia-related matters.
    • He appointed special counsel Robert Mueller in May 2017 and oversees the special counsel investigation.
    • His firing or resignation could imperil the Mueller investigation, and would almost certainly launch a complex legal battle.


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